Workplace investigations refresher part 6: drafting allegations

Any workplace investigation is only as good as the allegations they consider. For this reason, the importance of drafting allegations that are capable of being assessed cannot be understated. In part 6 of our workplace investigations series, we discuss the key ingredients that make up a good allegation, and identify the common pitfalls that often only become evident when it is too late.

Why is a well drafted allegation important?

In any investigation, one of the most important first steps is for its scope to be defined. Practically, this provides it with clear direction, allowing the investigators to stay on track and if needed, refer back to ensure they do not creep outside the defined boundaries.

In some matters, this comes in the form of terms of reference. In others, like a workplace investigation, its scope is determined by the allegations it considers. Well drafted allegations will provide the investigator with a clear direction to focus their inquiries and make necessary findings.

Similarly, good allegations will set the platform for an investigation that is as procedurally fair as it possibly can be, and will place the employer in the best possible position to resist claims of bias or unreasonableness.

What makes a well drafted allegation?

To answer this question, let’s start with the below hypothetical complaint as an example:

I was in the office a few weeks ago I had just finished getting a coffee in the kitchen when Joe Bloggs said something to me which made me angry. I think it was “get lost” or something like that. I really think he is trying to make me so uncomfortable that I quit my job. This is not the first time he has done this, a few years ago he said something similar as well, and I have heard from others that he has done the same thing.

Kind regards

Jane Citizen

On its face, this allegation seem appropriate, however, as we work through the elements of a well drafted allegation, it will become apparent that there are some significant flaws as it is currently presented.

Element 1: be precise, but not too precise

It is critically important that allegations are not inappropriately vague or imprecise. When preparing an allegation, try to answer as many as the below as possible:

• when was the conduct alleged to have occurred?
• what allegedly occurred?
• who was it perpetrated against?
• where did it occur?

In our hypothetical complaint, apart from the alleged respondent, the rest of the matters are vague and imprecise. In this situation, an investigator could approach the complainant for some further information, but often they will not be able to recall any further specific information. In this case, it is important that the allegation gives some flexibility to allow the investigation to not be frustrated by a technicality.

The below table explains the different approaches in more detail:

Element 2: keep it objective and free of emotion

The role of a workplace investigator is to make findings of fact that can be objectively ascertained by the evidence to the requisite standard of proof. When drafting the allegation, this means disregarding the subjective perception of the respondent’s alleged conduct and any commentary around why it may have been engaged in.

In the hypothetical complaint set out above, there are a number of statements which should not be included in the finalised allegation. These are that: 

• the alleged conduct made the complainant angry; and
• it was the respondent’s intention to make them so uncomfortable that they quit their job.

Where these matters may become relevant is determining whether the respondent is in breach of a policy or code of conduct, which often require investigators to assess the respondent’s actions against reasonable standards of behaviour. However when it comes to drafting allegations, they should not be referred to, as It is impossible to make objective findings of fact on a person’s feelings and emotions.

Element 3: have something to hang your hat on

While on the topic of codes of conduct, we recommend that allegations refer back to the relevant policy, contract term or piece of legislation the actions if proven may have breached. This provides the respondent with fairness in the form of a clearly defined obligation they have been expected to comply with, and assists the investigator by providing them with guidance on how the conduct as found based on the evidence should be assessed.

Element 4: rumour does not have it

The hypothetical complaint refers to rumours that Joe Bloggs has said similar things to others in the past. Clearly, there is insufficient evidence to investigate this matter and it should not be included in the allegation.

Depending on the seriousness of what is being alleged, the investigator may wish to contact the complainant and ask for more details on these rumours (see element 1), but proceed down this path with caution, as often individuals who have not raised it formally prefer not to have the issue agitated further.

Element 5: timeliness is next to godliness

One of the most common challenges faced by workplace investigations is the degradation of evidence relevant to an allegation due to time. Often it takes complainants some time to decide they wish to pursue a complaint, which can often make it difficult for an investigator to collect enough probative evidence to make a definitive finding on an allegation one way or the other.

Once a complaint is received by an employer, it is important to act quickly to ensure the state of the evidence is as complete as possible. On an enterprise level, this will be aided by a clearly published complaint procedure, which shows employees that allegations of inappropriate conduct will be taken seriously.

Element 6: keep your evidence separate from your allegation

Putting evidence to witnesses, especially the respondent is a key element of a workplace investigation, as it ensures procedural fairness. However, the allegation drafting stage is not the appropriate time. In drafting the allegations, consideration should be had to the evidence before the investigator, but should not be referred to in the allegation itself.

In our upcoming articles, we will discuss in more detail what evidence witnesses should be given to respond to the allegations and how their evidence can be provided.

Conclusion

With all this in mind, how should our hypothetical complaint be transformed into a suitable allegation? We think as follows:

In or around June 2021, in the office and in the vicinity of the kitchen area, Joe Bloggs said to Jane Citizen words to the effect of “get lost”.

This conduct, if proven may amount to a breach of the “Bullying and Harassment” clause in the Company’s Code of Conduct.

Of course, the language and expression may differ from person to person, but by ensuring all the elements identified above are satisfied, organisations will be well placed to conduct a comprehensive and useful investigation.

Related Insights

• Workplace investigations refresher 01: Where to begin
• Workplace investigations refresher part 2: Following your framework
• Workplace investigations refresher part 3: legal professional privilege and workplace investigation reports
• Workplace investigations refresher part 4: Waiving LPP over workplace investigation reports
• Workplace investigations refresher part 5: Maintaining legal professional privilege over workplace investigation reports